The Courts Both Uphold the Rule of Law and Prioritise the Human Rights of Individuals and Children Over the Commercial Interests of the Tabloid Press – Jonathan Coad

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The PJS v NGN injunction case is just another ugly example of a paid tabloid betrayal/kiss-and- tell story without a shred of genuine public interest while of considerable financial value to both the betrayer and the newspaper. Rarely does a legal case receive so much press attention as when tabloids are outraged by their inability to report on a celebrity threesome they claim is of interest to the public (rather than of legitimate public interest).

The facts behind the legal action

The facts have been rehearsed at length in the media. If you have any interest in the story and access to the internet, you will probably already know who the parties are. The story concerns a man (PJS, who is the spouse of a famous person in the entertainment business), who apparently had a sexual relationship with a friend, ‘AB’. At one point, PJS supposedly invited AB’s partner, ‘CD’, for a ‘three-way’ with AB, who both duly obliged. PJS and AB’s relationship fizzled out and AB and CDapproached The Sun doubtless to offer a betrayal of PJS’s confidence for money. The Sun decided torun the story and sought PJS’ comments.

The initial application – Round 1

PJS applied for privacy injunction restraining publication; the first incarnation of an injunction being to hold the line pending a full trial of the action. It was initially refused by the presiding judge. The Court of Appeal allowed the appeal and granted the injunction declaring that there was no public interest in the information being published. Importantly, there was no false image which required correcting as the image presented by the celebrity couple had been one of commitment to each other, not monogamy.

AB (doubtless assisted by the Sun) then had his story published in the US – for which he was doubtless handsomely paid. Similar articles then appeared in other jurisdictions not subject to the injunction, including Canada and Scotland, and the allegations started to spread across the internet.

At the same time, the Sun began a campaign, calling on its readers to write to their MPs so that the paper could “tell … the full story of the celebrity father’s threesome”. It even suggested a form of wording.

The Sun returns to the Court of Appeal – Round 2

The Sun then returned to the Court of Appeal to have the injunction lifted – as it had in the case of Ryan Giggs whose privacy injunction it broke using the same tactics as it has in this privacy action.

The resulting furore was perhaps most notably expressed in the description by the Mail Online of the law as an “ass”. Most Fleet Street titles had published editorials of some sort ridiculing the injunction, which was only effective in England and Wales.

The Court of Appeal set the injunction aside, primarily on the basis that the cat was by then out of the bag, so there was no reason to continue to restrict the press’ freedom of expression by keeping the injunction in place. In balancing the rights to privacy and freedom of expression, in the opinion of the Court of Appeal the fact that the private information was in the public domain tipped the balance in favour of freedom of expression; and because the Court of Appeal thought it more likely than not that the privacy claim would fail at trial it discharged it.

The Supreme Court has its say – Round 3

PJS then appealed to the Supreme Court which, after taking some time to consider the matter, re-instated the injunction with the result that that the British press (except Scottish publications) were prevented from reporting on the allegations. The Supreme Court found that although a mere breach of confidence claim would fail, PJS and his children were still entitled to have their privacy protected against the massive additional intrusion that would follow should the injunction be lifted. It decided that PJS was more likely to succeed at full trial and determined the injunction should therefore remain in place until that trial takes place.

So where is law of privacy now?

A freestanding right to privacy clearly now exists in English law as distinct from the law of ‘breach of confidence’. This is an important distinction. Where a person whose privacy is threatened relies only on the law of confidence (i.e. because the details of the sexual encounter are confidential to the participants) that person cannot suppress further publication once the story is out and the quality of confidence is lost. The test is qualitative and measures what has already been disclosed against what has not been.

Where the issue is privacy, different considerations apply: the law of privacy is just as concerned about intrusion as preserving secrets. This explains why the court can restrain publication of private information, even once the cat is out of the bag, if it still serves a useful purpose. That purpose is increasingly to reduce the intrusion and distress caused by the extensive republication of private material.

The reality is that, in terms of the degree of intrusion, there is a huge difference between people in the UK who are interested enough actively to take the trouble to hunt around on the internet for private information, and it being splashed in lurid terms on the front pages of the entire tabloid press. The Supreme Court emphasised the qualitative difference in intrusiveness and distress between the disclosures on the internet which have already occurred and the media storm which would follow from publication by the English media of stories in hard copy and on their own websites.

So is the press outrage justified?

This is what the Supreme Court said that will have sent shivers down the spine of tabloid editors and their accountants; “There is not, without more, any public interest in a legal sense in the disclosure or publication of purely private sexual encounters, even though they involve adultery or more than one person at the same time.” But this conclusion is based on a privacy provision which is not only embodied in the Human Rights act but also in identical terms in the IPSO Code which has been entirely written by the press.

Some newspapers have complained that this Supreme Court decision means the death of the “kiss and tell” story – in a way that implies that British society would thereby be poorer; though it is hard to see how unless a genuine public figure rather than a mere celebrity is involved. The inclusion in this passage of the words “without more” suggests that where a false image needs to be corrected, the balance might well tip in favour of disclosure. So a celebrity who himself trades off his image as a model ‘family man’ (rather than just being portrayed as such by the media) but is in fact a covert serial cheat on his partner still is at risk. That much has not changed. But it does mean that certain areas of a celebrity’s private life are otherwise off limits to the media – however salacious the allegations might be, and however much a paper’s circulation might otherwise increase.

In this case the press has blatantly prioritised it own interests even above the interests of the children, dismissing them as “trump cards” or “human shields”. But those children also have their own privacy rights which exist independently from those of their parents. The press also seem to have forgotten that their very own IPSO Editors’ Code of Practice – which wrote – recognises the primacy of those rights: “An exceptional public interest would need to be demonstrated to over-ride the normally paramount interests of children under 16”. In this case, the court held that there was no public interest whatsoever in publication, let alone one which could be described as ‘exceptional’.

It cannot be right if titles such as The Sun and The Mail are permitted to use their immense power to subvert a court order just because it is contrary to their interests. This is especially so where that court order is made by independent judges based on a right granted by a respected international human rights convention, brought into our law by act of Parliament, and imported in to the press’ own self-regulatory code by those very same titles. In the end we all have to decide if we want the scope of our law to be determined by Parliament and the courts; or by the serial and illegal infringers of both human rights and the criminal law – the publishers of the Sun.

This post originally appeared in the Huffington Post and is reproduced with permission and thanks